Durr v. Hanover Nat. Bank

• Decision Date: 05 July 1910
• Citation: 170 Ala. 260,53 So. 1012
• Parties: DURR ET AL. v. HANOVER NAT. BANK ET AL.
• Court: Alabama Supreme Court

53 So. 1012

170 Ala. 260

DURR ET AL. v. HANOVER NAT. BANK ET AL.

Supreme Court of Alabama

July 5, 1910

Rehearing Denied Dec. 22, 1910.

Appeal from Chancery Court, Shelby County; W. W. Whiteside Chancellor.

Bill by the Hanover National Bank and others against John W. Durr and others. Decree for complainants, and respondents appeal. Affirmed.

The original bill was filed for the foreclosure of a mortgage by sale. While the suit was pending the interest of one of the complainants was transferred to Meyer L. Greil, and thereafter he and the other complainants entered into a written agreement for an adjustment of the matters involved. By the terms of this agreement the respondent Durr was to execute to a trustee for the benefit of the complainants a deed to the property mortgaged, which deed was to be deposited with the president of the New Farley National Bank in escrow, to be delivered to complainants in payment of the mortgage in suit in the event Durr should fail to pay the amount to be paid by him on the 1st of March, 1908, in which event complainants were entitled to have a decree for the strict foreclosure of said mortgage. It was further agreed that, if defendant should pay the amount of said mortgage indebtedness by the time stipulated, the suit should be dismissed, and the mortgage and notes surrendered and canceled. Having failed to make the payment as stipulated the complainants, on the 29th day of March, 1909, filed an amended bill, setting up the transfer of the interest to Greil, the execution of the agreement mentioned above, the default of the defendant, and the consequent accrual of the right of the complainants thereunder, and praying that the agreement be carried out by the court, and a decree of strict foreclosure entered, or, in the event the court should hold that they were not entitled to have the agreement carried out, that the mortgage should be foreclosed by sale, as prayed for in the original bill.

J. M Chilton, for appellants.

Steiner Crum & Weil and Horace Stringfellow, for appellees.

ANDERSON J.

The amended bill is in the alternative, and it may seek inconsistent relief; but it relates to the same subject-matter, and section 3095 of the Code of 1907 would be meaningless if it did not apply to a case like the present one. Said section reads as follows "Multifariousness.--Unless taken by demurrer, objection to a bill because of multifariousness must not be...